109 Ala. 645 | Ala. | 1895
This cause was tried by the city court without a jury. The appellant (defendant below) was a mercantile corporation, located and having its principal place of business in Nashville, Tenn. The plaintiff resided in Atlantic, Iowa. From sometime in 1886 until after the principal transactions which gave rise to this suit the defendant conducted a branch business in Birmingham, Alabama. The evidence establishes to our satisfaction the following facts : McClure was vice-president of defendant company, and, though he resided in Nashville, and made only occasional visits to Birmingham, he had special supervision of the Birmingham branch. James B. Hopkins, of Birmingham, was. employed to carry on this branch business as general manager, and he conducted it,with the exception of an interval not material to notice, in that capacity. He ordered all goods needed from the parent house; sold them for cash or on credit, at his discretion ; received and paid out all moneys; incurred and discharged all incidental expenses ; kept the bank accounts,and drew all checks thereon; made the contracts for the rent of the storehouse, and paid the rents ; attended to insuruance and did generally what was necessary in the conduct of the business, and usually appertains to the office of general manager. He was not authorized to purchase goods, except through orders at the parent house, in Nashville. This branch business was conducted under the name of “James B. Hopkins & Co.” until in 1889, when it was changed to “The Hopkins Stove & Roofing
Was the defendant unlawfully evicted by the plaintiff? The eviction is claimed to have consisted in the fact that the plaintiff entered upon the premises to repair the. building. There was no clause in the contract requiring either party to repair. By the special clause to which we have referred the defendant was exempted from the payment of rent while the building should remain in the condition the fire left it. It was wholly untenantable for any purpose contemplated by the lease. Good's could not have been kept and preserved therein. The repair of the building, also, by whomsoever made, would necessitate their removal. It was the defendant’s right to make repairs, but it was a right which could be waived. The plaintiff, by virtue of the clause in question, to say nothing of his general ownership of the property, had a legal interest in the speedy repair of the building, to the end that the payments of rent might continue, under the lease. If the defendant waived its right to repair by making known to plaintiff its purpose
The assignments of the rulings upon the pleadings are not insisted upon in the brief. The case being tried by the court without the intervention of a jury, we dispose of it, as appellant’s counsel have argued it, on the merits.
Affirmed.